Lunch breaks (legally called “meal periods”) must be provided after five working hours and must be at least one half-hour in length. Importantly, lunch breaks must be “duty-free”. A duty-free lunch break means that the employee is not required to perform any work. Employers who require employees to eat at their desk or do not allow the employee to leave the business premises do not provide “duty-free” breaks and are in violation of California law.

Employers who fail to provide a duty-free meal period are required to pay a penalty to the employee called a “meal period premium” of one additional hour of pay for every missed meal break. (For example, a non-exempt employee paid $10.00 per hour would be owed a $10.00 meal premium for each missed break).

Employers who systematically do not provide employee lunch breaks, especially those with many employees, face potentially enormous exposure in premiums, interest, penalties, and attorney fees.

There are only a few exceptions to California’s otherwise stringent lunch break requirement. One such exception is the “on-duty meal period”. Under the on-duty meal break exception, an employer may require an employee to work during their lunch break, provided that the employee is paid their normal wage during their lunch. Since it can be burdensome for employers to schedule and provide regularly occurring meal breaks, employers frequently attempt to use this exception.

However, on-duty meal breaks come with a huge catch. The exception is so narrow that only a tiny fraction of all employers could ever successfully use it to defend against a meal break lawsuit.

To apply the on-duty meal break exception, the employer must prove that the nature of the work makes it “virtually impossible” for the employee to take a duty-free half hour meal break. In other words, there is literally nothing the employer could reasonably do to create the circumstances that would allow a proper, duty-free lunch break.

Legally enforceable and valid on-duty meal periods also require the employer and the employee to enter into a revocable, written agreement stating that both parties agree to the on-duty meal period. This requirement is often overlooked by employers.

To illustrate these concepts, Mike works at Hot Dog on a Stick in Watsonville and is paid $15.00 per hour. Because Mike is the only manager during the night shift, Jared the owner requires him to be on-duty at all times to answer employee questions and deal with difficult customers. Jared verbally tells Mike that he must take “on-duty meal breaks” and forbids Mike from leaving the restaurant for longer than 10 minutes. Mike works for many years under these circumstances, and then is abruptly fired after he is wrongfully accused of stealing a corn dog.

Mike has a great case for unpaid meal breaks because the narrow on-duty meal break exception does not apply.

Even though Mike is the only manager at Hot Dog on a Stick, it is not “virtually impossible” for him to take a thirty minute, duty-free meal break. Other employees could have simply been trained to handle employee questions and customer complaints. Jared could have re-scheduled other employees to assure coverage during Mike’s half hour lunch break. Additionally, Jared failed to ever enter into a written On-Duty Meal Period Agreement with Mike, as is required by the narrow exception.